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The following papers address the legal basis for consultation, the fiduciary duty and aboriginal rights. With the new court judgements and appeals the legal analysis presented in these papers can quickly become out of date.

THE STATE OF THE LAW ON THE OBLIGATION TO CONSULT WITH FIRST NATIONS (August 2002)by Nancy Morgan, Morgan & Associates

The purpose of this short paper is to provide those working for First Nations on referrals with a brief overview of the current state of the law on the obligation to consult with First Nations. Unfortunately, since the law is not frozen in time, this information may be out of date by the time you read it.

Over the last decade, the courts have reaffirmed and clarified the governments' obligation to consult with First Nations in a number of important cases, including Sparrow and Delgamuukw and, more recently, the Taku River Tlingit and the Council of the Haida Nation cases.

The roots of the obligation to consult lie in the special relationship that exists between the federal and provincial governments on one hand and First Nations on the other. This relationship is described as "trust-like" or "fiduciary" in nature, which means that the governments have to act as if they were trustees and always keep the First Nations' interests foremost in their minds. Certain federal and provincial laws also impose an obligation on governments to consult with First Nations. This means that the obligation may have more than one source. For example, the provincial government may have to meet two sets of rules regarding consultation - one under a law such as the Forest Act or Environmental Assessment Act and another arising from its special relationship with First Nations.

The obligation to consult arises in circumstances where the federal or a provincial government is proposing to make a decision or take an action that may infringe (i.e. negatively impact) on a First Nation's aboriginal rights, including aboriginal title. In order for the government to justify its decision or action, it must show that it has a substantial and compelling reason for its decision or action. Secondly, it must show that the decision or action is consistent with the special fiduciary relationship between government and First Nations. As part of meeting the second part of the justification test, the government must show that it has consulted with the First Nation in a meaningful and effective way.

Some of the key points with respect to the obligations that arise from Delgamuukw and other important cases are as follows:

The federal and provincial governments have a legally enforceable obligation consult with First Nations whenever the governments' decisions or actions may infringe on a First Nation's aboriginal rights, including aboriginal title.

Third parties, whose activities may potentially infringe on a First Nation's rights, also have a legally enforceable obligation to consult with that First Nation and seek workable accommodations with that First Nation. Their duty to consult is similar to, but separate from, government's duty and extends to their day-to-day activities and operations.

Government and third parties (such as industry or developers) must consult in a manner that is meaningful and effective. They must carry out their consultation with utmost good faith and the intention of substantially addressing the First Nation's concerns. In particular, they must accommodate the First Nation's cultural and economic interests, including its aboriginal title and rights. (For a more complete description of the obligation, see the excerpt from Delgamuukw set out at the end of this section.)

The extent of the obligation to consult varies with the circumstances and ranges from consultation to consent depending on the type of First Nations rights that may be infringed upon and how serious the infringement is likely to be.

Governments and third parties must consult with First Nations that have specifically claimed aboriginal rights, about potential infringements, before the aboriginal rights have been confirmed in a court decision or a treaty. This means that a First Nation does not have to prove the existence and scope of its aboriginal rights in the affected area before the obligation to consult arises. It need only show that there is a good chance that it has aboriginal rights in the area in question.

Consultation generally requires that government and third parties fully inform a First Nation about a proposed decision or action and seek information from the First Nation about the impact of such an decision or action on the First Nation's rights or interests. The First Nation must be given the opportunity to provide such information. Then, government and third parties must assess this information to determine the likelihood of the decision or action infringing on the First Nation's rights and interests. Finally, government and third parties must seriously consider whether there are ways to avoid infringing or otherwise accommodate the First Nation's rights and interests.

The obligation to consult with First Nations whose treaty rights may be infringed by a decision or action is "if anything, more obvious where [government] has reduced its solemn promises to writing". This means the obligation to consult is usually clearer where a treaty has been signed because it is easier to prove the existence and scope of rights that are set out in writing and agreed to in a treaty.

First Nations cannot refuse to be consulted and then argue that a decision was not properly made because they were not consulted. However, First Nations are entitled to a process that is separate from the regular public consultation process (such as open house sessions and public forums). Once First Nations have had the opportunity to review the relevant information, they then have an obligation to express their interests and concerns.

The outcome of a court challenge regarding the infringement of an aboriginal right by a decision or an action of government or a third party will likely be determined by the court's conclusions on the likelihood and extent of the potential infringement and the quality of consultation and accommodation.

The courts have occasionally ordered governments to pay First Nation's court costs in cases involving the obligation to consult in advance of trial because of the exceptional nature of the cases. First Nations may advance the argument that governments and third parties should similarly be obliged to assume a First Nation's costs of participating in consultation processes.

WHAT DOES THIS MEAN FOR YOU?

Having considered what the law has to say about the obligation to consult, the question then arises of "what does the obligation to consult mean for you as a First Nations referrals practitioner?"

1. Governments and third parties cannot simply ignore your First Nation's rights as long as you can show your First Nation probably has aboriginal rights that may be infringed by their decisions or actions. They are under a positive obligation to talk to you, to consider what you have to say and accommodate your concerns. It is not enough for them to simply send a few letters or faxes, they must consult in a meaningful and effective way.2. You do not have to prove your rights in court before the government's and third parties' obligation to consult arises.3. You need to do what you can to gather evidence so you can demonstrate to government and third parties that your First Nation has aboriginal rights. You should also provide as much of this information to government and third parties as possible to support your position (bearing in mind you may not want to share certain information of a confidential or sensitive nature).4. It is very important to show the extent of the potential impact of the decision or action in question. For that reason, you should be sure to provide information to government and the relevant third parties on how the proposed decision or action may impact on your rights (e.g. how it may restrict your ability to exercise certain rights or limit the ways in which you could use the land in the future). It is not enough to simply advise them that you do not support certain activities that will be taking place within your traditional territory.5. It is useful to gather information that could be used to challenge the underlying basis for the decision or action itself. For example, if you can show that the suggested benefits of the project or initiative are questionable (e.g. there is no demand for what they intend to produce) or the likely benefits will be outweighed by the negative effects of the project, you may be able to show that there is no compelling basis for the project going forward in the first place.6. You should determine what resources and time frame are required in order to satisfy yourselves that you have been consulted in a meaningful and effective way. If you require resources to participate in consultations or an extension of the time period you have been given to respond to a proposal, you should make the request in writing to the relevant government agencies and third parties.7. You should keep a record of all the written and oral communications (including notes of meetings and phone calls, as well as copies of all letters and notices) related to the activities in question. You will need this information if you want to later show that the consultation was not adequate.8. If your First Nation has a treaty, make sure you have a clear understanding of your First Nation's rights under that treaty. Gather information about the treaty and, especially for the older treaties, find out what oral commitments were made as they may be very important to interpreting the treaty.9. Third parties, including industry and developers, now have to consult with you (it is no longer just an obligation on government). The courts have said they must carry out their work with minimum infringement of First Nations' preferred way of exercising their rights. This may mean they are more willing than ever before to consider arrangements that may meet your interests and address your concerns, such as joint ventures, impact benefit agreements, or employment and training agreements. They may also be willing to take additional steps to address your concerns about the impact on the environment. However, by consenting to a project or entering into an agreement, you may be limiting your ability to advance a legal claim at a later date opposing the project based on your aboriginal rights. It is likely that governments and third parties would use such an agreement to show that you were consulted, your interests were accommodated and you were provided with the opportunity to share in the economic benefits.10. Finally, you need to decide what your First Nation's priorities are so you can determine when you want to negotiate arrangements with governments or third parties and when you want to oppose a project or initiative because it will have too significant an impact on your First Nation. For a further discussion on this point, please see the information on the home page under the heading "Using the Toolbox".

EXCERPT FROM DELGAMUUKW DECISION

The following passage from the Supreme Court of Canada's decision in Delgamuukw is often quoted in describing the obligation to consult:

Moreover, the other aspects of aboriginal title suggest that the fiduciary duty may be articulated in a manner different than the idea of priority. This point becomes clear from a comparison between aboriginal title and the aboriginal right to fish for food in Sparrow. First, aboriginal title encompasses within it a right to choose to what ends a piece of land can be put. The aboriginal right to fish for food, by contrast, does not contain within it the same discretionary component. This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown's failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. (paragraph 168).

The Impact of Recent Decisions on the Duty to Consult & the Determination of Aboriginal Rights

This paper was prepared by Barbara Fisher, Blake, Cassels & Graydon LLP, for the Continuing Legal Education course materials Aboriginal Law Conference-2002, March, 2002 and is reproduced with permission.

The full paper is available via pdf download at the bottom of the page. Summary

The Crown's duty to consult with a First Nation about Crown regulation or activity that affects the First Nation arises from a variety of legal sources. The first source emerges from the Crown's historical fiduciary relationship with aboriginal people. The common law duty, given constitutional protection under the Constitution Act, 1982, has been expanded to include a duty to consult about possible infringements of s. 35(1) rights. In addition, a statutory regime may set out specific duties to consult within the context of an approval process, government policy may establish consultation guidelines and finally, the rules of natural justice and administrative fairness also dictate to some degree the extent of the duty to consult.

The historical fiduciary relationship has been primarily between the federal Crown and aboriginal people. However, more recently, courts have identified a similar relationship between the provincial Crown and the aboriginal peoples of the province. The scope of this fiduciary relationship and the duties arising from it are still being defined through litigation.

Provincial jurisdiction over lands and resources, and provincial regulation and activity on Crown land has resulted in more frequent conflicts between First Nations' aboriginal rights and interests, the provincial Crown and third parties. According to recent authority from the B.C. Court of Appeal, the province does not have the constitutional jurisdiction to authorize any official, decision-maker or tribunal to determine the aboriginal rights of any First Nation. However, the province may still infringe aboriginal rights through valid provincial laws and regulations provided such infringement is justified. Only a court may ultimately determine whether a First Nation has aboriginal rights, what the scope of such rights are, whether there has been an infringement in any particular case and if so, whether such infringement is justified.

While there are as yet no court decisions defining the nature and scope of any First Nation's aboriginal rights, the Crown has a considerable amount of information about British Columbia First Nations' interests, since over 2/3 of these First Nations have been in the treaty process since 1994. Therefore, the Crown should be in a position to reasonably assess assertions of aboriginal rights in any particular case.

In addition to being a key element in the infringement and justification analysis, consultation is a practical requirement. However, because of the limitations on the province's jurisdiction, it must consult only about possible infringements of aboriginal rights and about the First Nation's interests (outside the constitutional context) in the lands or resources at issue.

The content of the Crown's duty to consult has not changed substantially over the past number of years. Regardless of the legal source of the duty, the province has for a long time been required, from a practical and economic perspective, to consult with First Nations about the use of resources in their traditional territories.

The consultation exercise essentially requires the following elements:

The Crown fully informing the First Nation about the proposed regulation, permit, approval or activity;

The First Nation fully informing the Crown about its assertion of rights, traditional practices, interests and concerns;

The Crown assessing the First Nation's assertion of aboriginal rights and the scope of those rights;

The Crown considering its fiduciary obligations to the First Nation and the possibility that its proposed action might infringe aboriginal rights;

The Crown considering the First Nation's interests in the affected area;

The Crown seriously considering alternative courses of action to address the First Nation's interests and to avoid possibly infringing its aboriginal rights.

In the writer's view, the courts have not done an adequate job of providing clear direction about the duty to consult that is conducive to achieving certainty or negotiated settlements. The courts have not clearly delineated the content of the duty to consult stemming from fiduciary, constitutional, common law or statutory requirements. Many decisions focus on the constitutional justification analysis, which is one element (albeit an important one) of consultation, but an element that creates a more adversarial environment for negotiation. Other cases focus on administrative law issues of procedural fairness, with varying results depending on the scrutiny of analysis. It is not clear whether a comprehensive statutory consultation regime that considers the Crown's fiduciary, constitutional and common law duties is sufficient for all purposes. Finally, the courts appear to separate process from substance. This is problematic, because the substance of a right in issue is relevant in determining the appropriate process to consult about activities that may affect that right.

By: Stuart Rush, Q.C. Materials prepared for conference held in Vancouver, BC hosted by the Pacific Business & Law Institute on October 19th & 20th, 2000.

A. Introduction

The Supreme Court of Canada in Delgamuukw enlarged the standards for Crown conduct in relation to Aboriginal title. The Court did this by widening the fiduciary duties on the Crown in order to promote what it called the fundamental purpose of s.35(1) namely, the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. The imposition of broader fiduciary standards was intended to achieve co-existence of the land rights of Aboriginal people and the title of the Crown. This could only be achieved by strengthening the hand of Aboriginal Nations.

It is my view that the Court understood that it had to impose mandatory obligations on the Crown in order to give legal power to the title which Aboriginal Nations hold in their lands. These obligations were intended to compel the recognition of Aboriginal title as a true legal right because the Crown does not accept any Nation’s title. The Court recognized that rights had to be backed up by procedural guarantees.

To this end, the Court established the following fiduciary duties to guide Crown conduct in dealing with Aboriginal Nations and Aboriginal lands:

The duty to safeguard Aboriginal title land;

The duty to accommodate Aboriginal title where infringed; this involves three separate included duties:

the duty to give priority to Aboriginal title,

the duty to consult,

the duty to compensate.

The duty to bargain in good faith.

All of these are important fiduciary duties resting on the Crown. There are developments in respect of each but I will only deal here with the duty to consult and the duty to bargain in good faith. In respect of these two duties there have been some recent developments in the law which have further clarified the Crowns’ obligations and the legal rights of Aboriginal Nations since the meaning of these principles was first debated in the spring of 1998.

B. The Duty To Consult

The duty of the Crown to consult with Aboriginal Nations was described by the Supreme Court in the following way:

There is always a duty of consultation. Whether the Aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standards is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. (emphasis added)

It is apparent from this passage that the Supreme Court set down different levels of consultation depending on the seriousness of the interference. The less interference with Aboriginal title, the less stringent will be the requirement for consultation. The more intrusive the measure, the more strenuous must be the consultation. In some cases, consent of the Aboriginal Nation for the act or measure will be necessary. It is fair to suggest that the closer the measure or law comes to affecting the essential character or quality of the Nation’s title, then the more likely it is that consent will be required. Where consent is required, the Aboriginal Nation will have a veto over development, interfering measures and acts.

If we take the usual case, consultation must:

substantially address the concerns of the Aboriginal peoples whose lands are in issue;

be in good faith;

be significantly deeper than mere consultation.

The courts have wrestled with the meaning of consultation in specific factual situations. Except for the recent decision in Halfway River First Nation ("Halfway") (discussed below) none of the decisions have produced very satisfactory results where Aboriginal title was specifically claimed.

Generally the courts will take a dim view of an outright refusal to consult. This is an obvious case. Governments can no longer say they will not consultt. Nor do they. The sparks are generated over the sufficiency of consultation. In R. v. Jack, John and John, the Court of Appeal in British Columbia found that the federal and provincial governments must demonstrate that they consulted about a restriction on the aboriginal right to fish otherwise they are unable to justify an infringement.

In Klahoose First Nation the court refused to set aside the Forest Minister’s decision to grant a renewal of a TFL even though there was a breach of the duty to consult. McKenzie J. found that, because the third party corporation involved had relied on the Minister’s decision, that reliance was paramount to Klahoose’s lost opportunity to consult. Consultation was seen as a secondary obligation. This decision was upheld by the Court of Appeal; leave to appeal to the Supreme Court was denied.

In Cheslatta v. Huckleberry Mines, despite the finding that the failure to provide wildlife habitat maps was inadequate consultation for the First Nation to assess the impact of a mine development, the court refused to interdict the development.

In Halfway, in August, 1999, there is major statement of the Court in determining what constitutes adequate consultation. In a two-one decision, the Court of Appeal gave some punch to the duty to consult. It upheld the Chamber Judge’s finding that there had been inadequate consultation in the issuance of a timber cutting permit and therefore an unjustified infringement by the Province of Halfway’s right to hunt. The court found that consultation was a substantive requirement under the test for justification.

The majority confirmed the general law that the Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that Aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concern, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action. This is how the Court interpreted the language of substantially addressing in Delgamuukw.

The majority upheld the finding of the Chamber’s judge that reasonable opportunities to consult were denied to Halfway because the fish and wildlife impacts report was not provided to Halfway in a timely way; and, there was no real opportunity to participate in the cultural heritage overview done on the lands where the logging was to take place. The court concluded that the Provincial Crown had failed in its duty to consult:

As laid down in the cases on justification, the Crown must satisfy all aspects of the test if it is to succeed. Thus, even though there was a sufficiently important legislative objective, the petitioners rights were infringed as little as possible, and the effects of the infringement are outweighed by the benefits to be derived from the government’s conduct, justification of the infringement has not been established because the Crown failed in its duty to consult. It would be inconsistent with the honour and integrity of the Crown to find justification where the Crown has not met that duty.

In the end, and most importantly, the Court of Appeal upheld the Chamber judge’s order quashing the decision of the District Forest Manager approving of a timber cutting permit within the area next to the reserve licensed for logging. Halfway got a positive benefit from the court’s ruling because it was able to stop government interference on the basis of a substantive right dealing with the use of resources on land where title was claimed but not proved.

In her concurring judgment, Madame Justice Huddart considered that the First Nation had to express the scope of the right claimed at the first opportunity so that the decision-maker involved could satisfy himself as to what was required in order to properly consult. This suggests that the Aboriginal Nation must provide sufficient prima facie detail of the Aboriginal title or right claimed so that the manager could be equipped to consult at the appropriate level and in the proper way as mandated by Delgamuukw. This was necessary, according to Justice Huddart, because consultation "must preceed any infringement/justification analysis". (para.180) This is an important development in the duty to consult.

Huddart, J.A. emphasized that provincial line managers were required to make a preliminary assessment of the claimed rights based on direct inquiries of the nature and scope of those rights with the Band and there was simply no consultation until this occurred. Absent this preliminary evaluation of the Nation’s rights or title, the Crown could never get over its initial duty and the justification phase would not arise.

This is significant because it places on the Province’s shoulders an initial obligation to finding something out about the title it must consult about. The Province can no longer put its head in the sand when an Aboriginal Nation claims title. It must inquire, as a first order of discharging its duty, about the prima facie evidence to show title exists. Then, it must consult in a manner that is consistent with the nature and scope of that title.

Southin J.A. in dissent said that the proper way to proceed was not by judicial review but by trial. Her view was that, if it was to be found that the Crown committed a breach of its obligations under the Treaty, such a determination should only be made on evidence adduced at trial and by recognizing that third parties may have interests in the dispute. The majority rejected this approach. Though this issue is not entirely free from doubt, since Finch J.A. said that there was never a request by the Crown to send the issue of the Nation’s hunting rights to trial for determination, at least in circumstance such as were present in Halfway, Aboriginal claimants do not have to go to a full trial to prove their rights before the courts will enforce a failure to properly consult.

Having said this, however, there is a disconcerting tendency developing in the courts in B.C. that all cases which raise a claim to Aboriginal title should be resolved only at trial and not through other expeditious proceedings such as judicial review, trial by affidavit or by summary process as in the case of the Chippewas of Sarnia case, because they involve inherently complex questions of fact and law. The Crown in B.C. has seized upon this argument to steer the courts away from dealing with consultation, accommodation and good faith issues in the short-term. The Province has not accepted that any Nation in B.C. has title. It maintains that all such claims must be fully proven. Halfway gives support for another way of dealing with title claims without the necessity of a full trial and the deleterious impacts of delays which usually follow. It is noteworthy that in the Chippewas case it was the Crown which promoted the summary process.

The question of requiring proof of title obviously affects the way the Province discharges its duty of consultation. If you do not accept that aboriginal people have a right, which needs to be addressed, or title which needs to be accommodated, then the seriousness with which you engage in consultation is lessened.

When does the duty to consult arise?

This is a critical question because a measure which affects land covered by Aboriginal title will only be justified if the consultation mandated by the Court at the appropriate level occurs. If consultation does not occur in the proper way at the appropriate level the measure is in jeopardy, cannot be justified, and, under the present direction of the Supreme Court, it ought to be struck down (though admittedly this has not happened with the frequency it should have).

Arguably, the duty to consult is in respect of lands held pursuant to Aboriginal title. That is to say, it is with regard to lands over which Aboriginal title has been proven or is acknowledged. At this point no Nation has proved title on the tests set out in Delgamuukw. But as the majority said in Halfway the existence and nature of the right or title has to be determined as a preliminary matter based on prima facie material and consultation then must proceed based on that information.

That title has not been proved does not matter for consultation. Given that Aboriginal title is a pre-existing interest in land held by Aboriginal Nations, the title to the Nation's traditional territory ought to be presumed. The title is co-existing and Crown title is subject to it. For the purposes of consultation (and Treaty talks) Aboriginal title is presumptive. It must be acknowledged for the process of accommodation, reconciliation and negotiation to work.

Presumptive title makes practical sense because there cannot be consultation or negotiations unless the governments accept that prima facie title exists and there is something to consult and negotiate about. It is increasingly clear that the Province and Canada do not negotiate on the assumption of existing title. For them negotiation is a political exercise. I have argued that, if the governments did not accept that there is prima facie title, on some level, they would risk a rash of lawsuits. It is increasingly evident that this is where we are going. The Province does not accept the existence of title in B.C. and where it is raised to challenge a decision to log or to oppose a mining development the Province says that the issue of title must first be decided and it should be sent to trial. This is the very result which the courts have tried to push the governments away from.

The nature and quality of consultation and accommodation are charged issues in B.C. at this time. Aboriginal Nations for the most part see the consultation policy and practice of the Province as woefully inadequate. The Province’s response is not to change the policy and practice but to tell already financially strapped Nations to go to court to prove their title. This position is destructive of the environment needed for negotiation.

The Province has to recognise that Delgamuukw has changed the legal terrain. It must adapt to the fact that Aboriginal Nations really do hold a legally enforceable title to all Crown land in the province and this title must be accommodated in its decisions. This means accepting prima facie proof of the existence of title. It means altering laws to reflect the accommodation needed where infringement will occur.

The Crown has similarly refused to acknowledge a presumptive or prima facie aboriginal title in the treaty process. As a result of the Crown’s failure to discharge its duty to bargain in good faith its conduct in bargaining has come under scrutiny by the courts as well.

C. The Duty to Bargain in Good Faith

In the context of urging that Aboriginal Nations to settle their claims through negotiations, Lamer, C.J.C. in Delgamuukw, said:

Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this court, that we will achieve what I stated in Van der Peet, supra, at para.31, to be a basic purpose of s.35(1) – "the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown".

Since the decision in Delgamuukw, I have argued that the court’s language here gives rise to a new duty to negotiate in good faith and that by looking to the model of labour relations case law we could give meaning to this duty and how it might be enforced. I argued that labour law principles governing the duty to bargain in good faith should be applied to the bargaining of a settlement between Aboriginal Nations and the governments. I set out a number of principles derived from labour law which could be used to define what is meant by good faith. I suggested that either a panel of the British Columbia Supreme Court or a special administrative tribunal be set up to adjudicate issues of good faith bargaining in order to keep the negotiation process moving along.

The law has been slow to delineate standards for good faith conduct in the negotiation process in B.C. The courts in British Columbia have refused to impose a duty to bargain on the Crown. The courts have said that there is no obligation to reach settlement once bargaining has started.

Meanwhile, the treaty negotiation process as it has been conducted through the British Columbia Treaty Commission has lumbered along. There are complaints that the process is not working and is taking overly long. Aboriginal Nations have said that they are frustrated with the formula positions taken by the Province in the negotiations and the failure to conclude interim measures to protect resources and lands during the course of negotiations.

There have been two recent decisions in British Columbia, which have confirmed the requirement and described the scope of the Crown’s duty to bargain in good faith. First, in Chemainus First Nation, the court found that the Province does not have a duty to negotiate with First Nations nor to reach agreement. In this case, the plaintiff sought an interlocutory injunction to enjoin dealings with land at Roberts Bank, which might create long-term third party interests in the land pending disposition of the action. Applying injunction principles, the court dismissed the application but reasoned that the Crown was not under a legal duty to negotiate with the plaintiffs nor to reach agreement:

I wish to make it clear, though, in my opinion there is no legal duty to negotiate or reach agreement. However, once the government commences negotiations with First Nations in my view it is a furtherance of its fiduciary duty. It must negotiate in good faith. I do not restrict that expression to lack of fraud or misrepresentation. In my view, the good faith component imports a duty on the Crown as fiduciary to genuinely negotiate with the claimants, that is, without oblique motive. There is no duty to agree nor is there a duty to negotiate endlessly as either party may terminate the process, it appears, at will.

I can agree with the second proposition but not the first. Is there any less of a fiduciary duty cast on the governments to negotiate settlements, than to bargain in good faith, once a negotiation process is established. I say not. The honour of the Crown is involved in negotiating with Aboriginal Nations about rights and title in both instances. The lower courts seem to prefer to see the duty to bargain as only a moral obligation not one enforceable at law. I think Lamer, C.J.C. meant to go beyond that.

The court found that there was no duty on the Province to continue negotiating a claim, which did not demonstrate a connection or a nexus between the people who make the claim and the land in question. This presumably was a reference to what the court considered to be the Nation’s tenuous connection to the Roberts Bank lands. I take the decision to mean that, if such a connection had been shown to some sufficient degree, the Province would have been required to continue in the bargaining process and it would have been an act of bad faith for it to have pulled out.

In Luuxhon, the court found that, once the Crown enters negotiation with an Aboriginal Nation, pursuant to the B.C. Treaty process, it has a duty to negotiate in good faith. But, there was nothing that obliged the Crown to negotiate a treaty as the B.C. Treaty process is voluntary. Williamson, J. set some broad parameters to what constituted the Crown’s duty to negotiate in good faith. He said good faith must at least include:

an absence of any appearance of sharp dealing;

disclosure of relevant factors; and,

negotiating without oblique motive.

Luuxhon is the first case in B.C. to give some definition to the meaning of good faith bargaining. The court noted that the duty to bargain in good faith was well established in labour law but did not apply labour law principles in assessing the content of the duty.

What is interesting in the case are the arguments, which the Crown raised to say why the good faith bargaining standard did not apply to it. The Province argued that fiduciary obligations do not extend to the Province because these obligations were passed only to the Federal Crown at confederation. The court found that the Province, as well as Canada, was impressed with a fiduciary duty in its dealings with Aboriginal people within the Province. While the Crown is divided, there is only one Crown.

The Province also argued that the British Columbia treaty process released it from its duty to negotiate in good faith because the treaty process is a self-contained self-regulating regime. The court rejected this argument as well. The court found that the duty to bargain in good faith was a widely-recognized principle in contract and labour law and should be imposed on the Province because of its special fiduciary relationship with Aboriginal peoples in the negotiation process.

The Crown also argued that treaty negotiation is a political exercise and not amendable to judicial supervision. In effect, the Crown suggested that the Province’s conduct in bargaining could not be scrutinized by the courts because its obligation was of a political not judicial character. Williamson, J. rejected this argument on the basis that judicial encouragement for negotiation cannot be said to amount to an abandonment of the court’s duty to enforce fiduciary obligations.

The court found correctly, in my view, that it was appropriate for courts to intervene in the treaty negotiation process where the obligations of the Crown in dealing with Aboriginal peoples were not being met.

The Crown’s arguments in Luuxhon provide insight into the Province’s perception of its obligations in the treaty process. Clearly the Province wants to be free from scrutiny of its conduct in the course of negotiations. It wants to be able to say it acknowledges good faith requirements but at the same be free to depart from those requirements when it chooses, all without judicial supervision.

The conclusions of the court in Luuxhon confirm the duty of the Province to bargain in good faith. The courts will intervene to control the process where good faith bargaining is wanting. The courts have taken on the job of supervising the process of bargaining. Aboriginal Nations are going to need their help if the treaty talks continue to stumble. Luuxhon is the first step in controlling Crown conduct in the bargaining process and it remains to be seen how far the courts will go in compelling the governments to abide by more stringent good faith standards.

The Province has appealed Luuxhon to the Court of Appeal. According to the Minister of Aboriginal Affairs, the reason for the appeal is to determine the proper role of the courts in negotiations. This means for him that there should be no role. The Province does not want the court supervising how they negotiate, the process or the standards. Hopefully the Court of Appeal will see the need for court supervision and scrutiny to make negotiation work for Aboriginal people.

Good faith requirements also have been considered by the courts and the Native Title Tribunal in Australia under the Native Title Act. The duty to bargain in good faith was reinforced in the case of Walley v. Western Australia. In that case, Justice Carr found that the government must negotiate in good faith before applying to an arbitral body for a determination. Where this did not occur, the parties were ordered back to the negotiation table. This acted as a powerful incentive to governments to consult with native title parties in a meaningful way.

Since the decision in Walley, the content of good faith negotiations has been considered by the National Native Title Tribunal. The tribunal determined that the following were useful indicia of the absence of good faith negotiations:

unreasonable delay in initiating communications in the first instance;

failure to make proposals in the first place;

the unexplained failure to communicate with the other parties within a reasonable time;

failure to contact one or more of the other parties;

failure to follow up a lack of response from the other parties;

failure to attempt to organize a meeting between the native title and grantee parties;

failure to take reasonable steps to facilitate and engage in discussions between the parties;

failing to respond to reasonable requests for relevant information within a reasonable time;

stalling negotiations by unexplained delays in responding to correspondence or to telephone calls;

unnecessary postponement of meetings;

sending negotiators without authority to do no more than argue or listen;

refusing to agree on trivial matters, e.g. a refusal to incorporate statutory provisions into an agreement;

refusal to sign a written agreement in respect of the negotiation process or otherwise; and,

failure to do what a reasonable person would do in the circumstances.

In a recent decision from the Native Title Tribunal, the Tribunal found that negotiation in good faith did not mean that the government had an obligation to accept the other side’s position, or mean that a negotiated agreement must be reached between the parties.

Good faith standards established in Australia are the kind of standards, which should be applied in British Columbia. These standards are similar to the principles established by labour relations boards in Canada to control bargaining between employers and unions. Whatever the source there is ample precedent for those in the treaty process to draw on to guide the way the negotiations are carried out. These principles are directed at making the process work where it is not working today. They are process requirements to make it possible for agreements to be reached in a timely way.

In my view the treaty-making process needs help to make it work for Aboriginal Nations. The courts have taken on the role of supervising the conduct of those negotiations. In my view there is an absence of good faith by the Province which runs through the way it conducts bargaining and the kind of positions which it puts on the table. For example the Province has developed a formula position that it will not agree to "give up" more that 5% of the land claimed as part of a settlement. This is a rigid non-negotiable position, which fails to take into account the wide differences in need, location and history of the various Aboriginal Nations in the province. I do not consider this position to be good faith bargaining.

This is the type of situation where the courts can assist the parties in the treaty talks to straighten out what is and what is not good faith and in the end facilitate reaching settlements. As with the duty to consult resort will have to be made to the courts in order to make this happen.

The judiciary has repeatedly called on First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements. It has also held that the Crown is under a duty to consult with a First Nation when it proposes to engage in an action that threatens to interfere with existing Aboriginal or treaty rights recognized and affirmed by s. 35( I) of the Constitution Act, 1982. In this Article, the authors argue that the duty to consult requires the Crown, in most cases, to make good faith efforts to negotiate an agreement specifying the rights of the parties when it seeks to engage in an action that adversely affects Aboriginal interests.

** Patrick Macklem. of the Faculty of Law, University of Toronto, Toronto, Ontario.

The full paper is available via pdf download at the bottom of this page.

l. Introduction

In northern British Columbia, about 50 kilometres south of Prince Rupert, lies Kumealon Lake, a pristine body of water which, together with its surroundings, abounds with fish, other marine life and wildlife. Prior to European contact, ancestors of the Kitkatla First Nation known as the Gitkaxaala people, along with other Aboriginal peoples, used Kumealon Lake and its surrounding lands for activities and practices necessary for its sustenance and survival. To this day, the Kumealon Lake region continues to provide important economic, cultural and spiritual resources to the Kitkatla First Nation in its efforts to maintain its distinctive indigenous identity.

In 1994, International Forest Products Ltd. (Interfor) began to log the Kumealon Lake region under a forest license and several permits conferred by the Government of British Columbia pursuant to the provincial Forestry Act. In 1997, after the Supreme Court of Canada decision in Delgamuukw v. British Columbia,1. the Kitkatla commenced litigation seeking to enjoin Interfor from logging the area. Since commencing its legal action, the Kitkatla have received no less than eleven judgments from the British Columbia Supreme Court and the British Columbia Court of Appeal. Most recently, the Kitkatla was ordered to pay Interfor's costs after they appealed the dissolution of an ex parte injunction and the refusal of the British Columbia Supreme Court to issue another injunction against Interfor's logging in the Kumealon watershed. As of August, 1999, although the Kitkatla have an appeal pending, they do not have an injunction protecting the Kumealon. 2

The Supreme Court of Canada's landmark decision in Delgamuukw v. British Columbia appeared to many observers to establish new constitutional benchmarks in the relationship between the Crown and First Nations. It held that Aboriginal title is protected as a matter of constitutional right, and affirmed that the Crown is under a duty to consult with a First Nation before undertaking action that might interfere with a First Nation's Aboriginal title. The Court's affirmation of the Crown's duty to consult is especially significant in light of repeated judicial calls for First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements. Perhaps the most well-known expression of this sentiment is Lamer C.J.'s statement in Delgamuukw that "[u]ltimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve. ..the basic purpose of s. 35( 1 )-'the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.'"3

But Delgamuukw's call for negotiated settlements and its affirmation of the Crown's duty to consult appear to have had little impact on disputes like the one involving the Kitkatla First Nation and Interfor. In fact, the Kitkatla litigation suggests that the duty to consult has produced the very effect that it was designed to minimize, namely excessive reliance on the judiciary to reconcile competing interests of the parties. Consultation processes, by and large, have not led to lasting settlements. Instead, consultations increasingly serve as a kind of pre-trial discovery process, closely resembling the litigation they were intended to forestall, and constituting the first step in protracted legal disputes.4

Our premise in this Article is that the reason why the duty to consult is failing to accomplish its purpose is because it has been widely misunderstood- by parties, by counsel, and by courts. This misunderstanding arises from a tendency to regard the duty as a legal requirement that assists in determining whether the Crown is constitutionally justified in engaging in a particular action that infringes on an existing Aboriginal or treaty right of a First Nation. That is this one of its functions is no doubt true, but characterizingthe Crown's duty in this manner obscures the extent to which it also operates ex ante to minimize reliance on litigation as a means of recognizing and affirming Aboriginal and treaty rights. Properly understood, the duty to consult also acts as a prelude to a potential infringement of an Aboriginal or treaty right. Consultation requirements ought to be calibrated according to the nature and extent of Aboriginal interests and the severity of the proposed Crown action in order to provide incentives to the parties to reach negotiated agreements. In most cases, the duty requires the Crown to make good faith efforts to negotiate an agreement with the First Nation in question that translates Aboriginal interests adversely affected by the proposed Crown action into binding Aboriginal or treaty rights. By realizing the duty's ex ante possibilities, the judiciary will have more success in its efforts to promote reconciliation between First Nations and the Crown.

3. Delgamuukw" supra at 1123-24 (quotingR. v. Van der Peet, [1996] 2 S.C.R. 507, at 539). See also R. v. Marshall (unreported decision of the Supreme Court of Canada rendered November 17, 1999), at para. 22 ("the process of ...accommodation ...may best be resolved by consultation and negotiation of a modem agreement for participation in shared resources ...rather than by litigation").

4. See J. Woodward and R.J.M. lanes Fulfilling the Promise of Consultation: Strategies and Tactics in First Nations, The Environment and Development: The Emerging Duty to Consult (Canadian Bar Association -Ontario, 1999 Institute of Continuing Legal Education Conference, January 28-30, 1999). See also J. Woodward, First Nation Empowerment Over Traditional Territories: An End to False Consultation, in Pacific Business & Law Institute, Environmental Law and Canada's First Nations (Conference Proceedings, November 18-19, 1999).